them to their home and leaving. it upon the floor within reach of their brother and playmate was an unnatural or improbable one.

It is contended that the complaint is bad, because it does not state who were the next of kin of the deceased, Todd Johnston, and we are referred to Cincinnati, etc., R. Co. v. Chester, 57 Ind. 297, 304; Pittsburgh, etc., R Co. v. Vining's Admr., 27 id. 518; Indianapolis, etc.' R. Co. v. Keeley, 23 Ind. 136; Gann v. Worman, 69 id 458. We do not think that these cases support the attack upon this complaint. It is in two paragraphs,

and the demurrer is to the entire complaint, so that if one is good, the demurrer is not well taken. In the second paragraph it is explicitly set forth that the appellee was the father of the deceased; that he expended money in and rendered services in endeavoring to secure a cure of his son; that he lost his services and society from the time he was wounded until his death. These allegations bring the case within the rule that money expended in the effort to cure a wound wrongfully caused by the act of another. Cincinnati, etc., R. Co. v. Chester, 57 Ind. 297; Cooley on Torts. 262. The right of action for the death is a statutory one, and is distinct and different from the personal right in the father recognized by common law. The complaint shows a right to some relief, and this gives it sufficient strength to withstand a demurrer. Bayless v. Glenn, 72 Ind. 5.

Additional strength is added to one at least of the paragraphs of the complaint by the facts stated in it showing that the cartridges were sold in violation of an express statute of the State. By an act passed in 1875, and incorporated into the revision of 1881 as section 1986, it is made a misdemeanor to "sell, barter, or give to any person under the age of twenty-one years any cartridges manufactured and designed for use in a pistol." In placing the cartridges in the hands of the lads, Allen and Todd, the appellant did an unlawful act, and under settled principles is liable for the consequence, naturally and proximately resulting from his unlawful act. In Weick v. Sander, 75 Ill. 93, it is held that where an act unlawful in itself is done from which an injury naturally may and reasonably be expected to result, the injury when it occurs may be traced back and visited upon the original wrong-doer. In the course of the opinion, and as a commentary upon cases reviewed, it is said: "The principle announced is that whoever does an unlawful act is to be regarded as the doer of all that follows." The decision in the case cited is well sustained; it finds support from the cases heretofore cited, as well as from the following and many others: Greenland v. Chaplin, 5 Exch. 243; Rowell v. Dewey, 3 Cush. 300; Sheridan v. Brooklyn, etc., Co., 36 N. Y. 39; Griggs v. Fleckenstein, 14 Minn. 81; Wellington v. Downer Kerosene Co., 104 Mass. 64; Farrant v. Barnes, 11 C. B. (N. S.) 533.

Appellant attacks one only of the instructions given by the court. The instruction assailed reads thus: "I instruct you that a sale of cartridges in violation of a criminal statute of the State would be of itself an act of negligence, and if you find from the evidence in this case that the defendant sold the cartridges as alleged in the complaint, such sale is an act of negligence on his part, and you will have no further trouble on this point." The sole objection stated is that the court had no right to declare that the sale of the cartridges, in violation of law, was an act of negligence. The only case cited in support of appellant's position is the case of Weick v. Sanders, from which we have quoted, and it makes against rather than for appellant. When a party does an act in direct violation of a positive statute, the court is justified in characterizing it as an act of negligence. It is in general true that negligence is a question of fact, but this is not universally true. Judge Cooley has examined this question, and with

ability and vigor he discussed it. In the course of the discussion he says: "Many cases clearly present mere questions of law, and such are the cases of the disregard of a law expressly designed to prevent the like injury. An instance is that of the failure of a railway train to come to a stop before crossing another road, as is required by the statute in some States, whereby another train is run into. Here the negligence is plain, but it might happen that some parties injured by it would, by their own negligence, be precluded from any redress. The case would be equally clear, if the railway company were to send out a train without brakes, and thereby an injury should result through the impossibility of stopping a train when a danger appeared; or if one were to set a bonfire in a town while a fierce wind was raging; or if he were to send a package of dynamite by express without disclosing its dangerous nature, concerning such cases no one should be in doubt." Cooley's Torts, 670. The principle that the court may, as matter of law, instruct the jury that an act constitutes negligence is illustrated by many cases in our own reports. Thus it has often been held that it is the duty of the court to instruct the jury that it is negligence for a corporation to make a dangerous excavation in a public street and leave it unguarded. So in relation to the duties of a railroad corporation, the court often declares to the jury what act will constitute negligence, and this holds good of instructions upon the subject of persous attempting to cross railroad tracks. But without prolonging this opinion we refer without comment to Railroad v. Stout, 17 Wall. 657; Ohio, etc., R. Co. v. Collarn, 73 Ind. 261; Pittsburg, etc., R. Co. v. Williams, 74 Ind. 462; L. & C. Co. v. Richardson, 66 id. 43.

It must not be left out of mind that the instruction does not affirm that there may be a recovery, but simply declares that it is negligence for a person voluntarily to do an act in direct violation of a statute.

In a case where there is evidence tending to show some excuse for doing an act prohibited by statute, it might perhaps be necessary to qualify the instruction, but there was here no such evidence, and it is to be remarked the instruction refers, when taken-as it must be as an entirety to such a sale as that charged in the complaint, thus limiting the general proposition to the particular case, The appellant asked the court to instruct the jury that if the sale was to Todd Johnston, and not to him and his brother jointly, there could be recovery. We think this instruction was properly refused. It was sufficient for the appellee to sustain the substance of the issue tendered by him. It was not material whether the boys joined in buying the cartridges; if the sale was to one of them it was an actionable wrong. Judgment cannot be reversed for an immaterial variance; it is only where the issue in its general scope is not sustained that a reversal will be adjudged. Rev. Stats., § 393.

Instructions numbered ten and fifteen asked by the appellant are substantially the same; and as the former was given by the court, it was proper to refuse the latter. It is not error to refuse an instruction when another embodying the same matter has been given.

The other questions presented upon the instructions are disposed of in our discussion of the sufficiency of the complaint.

Judgment affirmed.

MINNESOTA SUPREME COURT ABSTRACT.

BOUNDARIES-STAKES SET IN GROUND AT SURVEY PREVAIL OVER RECORDED PLAT-In an action involving the boundaries of real estate the question was whether in locating a certain line the distances in a

plat referred to in the deed, which plat was on record in the register's office, should prevail, or the stakes set in the ground in making the survey referred to on the plat. The court charged the jury that if in making this survey, the lots were staked out on the ground, stakes must control, without reference to the distances marked upon the plat; that the stakes are to be regarded as controlling monuments; and if they were afterward removed, the point where they were placed may be shown, and is to govern. Held, no error. Penry v. Richards, 52 Cal. 497; Fleischfresser v. Schmidt, 41 Wis. 223; Marsh v. Mitchell, 25 id. 706; Hiner v. People, 34 Ill. 297; Twogood v. Hoyt, 42 Mich. 609; Pike v. Dyke, 2 Greenl. 213; Brown v. Gay, 3 id. 126; Williams v. Spaulding, 29 Me. 112; Jackson v. Cole, 16 Johns. 257; Jackson v. Freer, 17 id. 29. The course of reasoning upon which these cases proceed is briefly as follows: It is a settled principle in the construction of conveyances, where any uncertainty arises as to the location, boundaries, or extent of the land conveyed, that courses and distances must yield to monuments established on the land itself, and where the land has been platted into lots and blocks in pursuance of an actual survey, and the plat purports to show the location of the lots according to such survey, the actual survey on the land, so far as relates to the size and locality of the lots is the principal thing, and the plat simply a delineation of it on paper; and if in making such survey stakes are fixed at the corners of the lots they become monuments, which if incorporated into the description in a deed, would control courses and distances; and the grant of a lot according to a plat so purporting to be a delineation of a survey, indicates a reference to the monuments fixed in mak

ing the survey. Turnbull v. Schroeder. Clark, J.

[Decided January 5, 1882.]

Opinion by

LEASE NO IMPLIED COVENANT THAT PREMISES ARE SUITABLE FOR TENANT'S BUSINESS-COUNTERCLAIM. In an action for the rent of stores defendant set up as a counter-claim for damages, that previous to the execution of the written lease plaintiff had recommended said stores to defendant as suitable for his business, which was that of merchandising, and stated to him that there was an excellent sewer connected with the stores, which would make the premises clean, The lease itself expressed no covenants on plaintiff's part claimed to have been broken. It contained no representations on the subject of the sewer or the suitableness of the tenement for defendant's use; but aside from the usual covenants for letting, its provisions related wholly to the matter of the finishing and fitting up of the rooms to be occupied by defendant, including the basement, in which defendant proposed to store goods. At the time of said negotiations said sewer had been constructed with ordinary care and prudence by plaintiff, and both parties believed the same sufficient, though it was not examined by defendant; and the same was in fact sufficient in ordinary storms, but proved insufficient and inadequate in a heavy rain storm of exceptional severity, which occurred while defendant was occupying said premises in July, 1879, and said sewer was broken and the said basement flooded with water therefrom, in connection also with a large amount of surface water, and said defendant's goods therein were greatly damaged. Held that the defense was not allowable. Laying out of view the question of fraud in the case, the plaintiff's obligation and duty rest wholly in the written contract. The words "demise or let," or their equivalent in a lease, imply a covenant for title and for quiet enjoyment, but no other covenants on the part of the lessor are implied therein. Foster v. Peyser, 9 Cush. 246. There is no implied covenant in this lease that said stores were provided with drainage facilities suit

able for their location, or that said stores were suitable for defendant's business for that or any other reason. The lessee is the party most deeply interested in protecting himself against casualties of storm and fire, and he should see to it that proper stipulations are embraced in the contract for his own security. And 83 said in the case just cited (page 247) “if he really mean a lease to be void by reason of any unfitness in the subject for the purpose intended, he should express that meaning." See also Wells v. Castles, 3 Gray, 323; McGlashan v. Talmage, 37 Barb. 315; Jaffe v. Harteau, 56 N. Y. 398. There may be one or two exceptions to this rule, as in the case of houses or rooms rented ready-furnished, not however material to be considered here. The case of Whittle v. Webster, 55 Ga. 180, turned upon the statute of the State. Swift v. Hotel Co., 40 Iowa, 322, was an action by the tenant for damages for not furnishing a hotel as covenanted. McAlpin v. Powell, 1 Abb. N. C. 427, was an action for negligence under the statute for a defective fire-escape. Scott v. Simons, 54 N. H. 426, in which the court strongly support the doctrine of the cases above cited, was based on a charge of negligence. In Cesar v. Karutz, 60 N. Y. 229, a landlord had knowingly leased premises infected with contagious disease. Wilkinson v. Clauson. Opinion by Vanderburgh, J. [Decided April 5, 1882.]

REAL ESTATE — IMPROVEMENTS BY TENANT IN COMMON. A tenant in common cannot, in the absence of any agreement or understanding with his co-tenant to that effect, make improvements upon the common property at the expense in any part of this co-tenant, so as to enable him to recover any portion of the cost or value of the improvements, either in an action brought by him for that purpose, or by way of set-off in an action brought against him by his co-tenant. The court does not speak of repairs, nor of what might be done upon a partition. Freeman, Cot. & Par., § 262; Crest v. Jack, 3 Watts, 238; Stevens v. Thompson, 17 N. H. 103; Thurston v. Dickenson, 2 Rich. Eq. 317; Taylor v. Baldwin, 10 Barb. 582. Walter v. Greenwood. Opinion by Berry, J. [Decided March 28, 1882.]

UNITED STATES CIRCUIT COURT ABSTRACT.*

CONSTITUTIONAL LAW-STATE STATUTE IMPAIRING CONTRACT. A judgment having been rendered against a municipal corporation, subsequent legislation by the State, restricting the powers of the administrative officers of such corporation, must be disregarded so far as it impairs the remedy of the judgment creditors. Where at the time of the contract a creditor of a municipal corporation had a right, after obtaining a judg ment against the corporation, to compel by mandamus the officials of the corporation, to levy a tax to pay this judgment, if the Legislature of the State abolishes that corporation and creates another in its place before the creditor obtains judgment, he may proceed to judgment against the new corporation, and compel (by mandamus) the taxing power thereof to levy a tax to pay the judgment. As long as his remedy is unaffected he cannot complain of the legislation. U. S. Circ. Ct., S. D. Alabama, June, 1882. United States ex rel. Watson v. Port of Mobile. Opinion by Pardee, C. J.

JURISDICTION FEDERAL QUESTION CONSTITUTIONAL LAW- STATUTE IMPAIRING CONTRACT. — (1) When there is a Federal question involved in the suit, the Circuit Court has jurisdiction, under act of March

*Appearing in 12 Federal Reporter.

3, 1875, without regard to the citizenship of the parties. (2) When a municipal corporation has made a contract during the existence of a State law which provides an adequate remedy by compulsory taxation through the courts, that remedy is a vital element of the contract The subsequent repeal of that law, and the adoption of a new Constitution prohibiting the levy of any judgment tax and limiting all taxation to the current support of the local government, would, if valid, impair the obligation of such a contract. The invalidity of such enactments must be decreed by any court trying such a case before a judgment enforcing the contract by the original remedy of a judgment tax can be rendered. (3) Such invalidity is the result of a violation of section 10, art. 1, Const. U. S., alone, and a suit to enforce the contract through that article is a suit "arising under the Constitution of the United States.” Though the plaintiff could sue in the State Court, and could obtain full relief there, yet he can resort to the concurrent jurisdiction of the Circuit Court. The jurisprudence of the State Courts, construing the effect of said section upon State laws and Constitutional articles, whether holding the latter valid or invalid as impairing the obligations of anterior contracts, cannot determine the jurisdiction of the Federal courts. The jurisdiction of the latter cannot be vested or divested by the character of the defense made, but depends upon the issues raised by plaintiff's petition, and necessary to be determined to afford him adequate remedy. U. S. Circ. Ct., W. D. Louisiana, June, 1881. Sawyer v. Parish of Concordia. Opinion by Boarman, D. J.

MASTER AND SERVANT NEGLIGENCE. If the master, or another servant standing toward the servant injured in the relation of superior or vice-principal, orders the latter into a situation of danger and he obeys and is thereby injured, the law will not charge him with contributory negligence unless the danger was so glaring that no prudent man would have entered into it even under orders from one having authority over him. If the circumstances be such that men of ordinary intelligence may honestly differ as to the question of negligence, it must be left to the jury. See Miller v. Union P. R. Co., 4 Fed. Rep. 768; Lalor v. Railroad Co., 52 Ill. 401; O'Neil v. Railroad Co., 9 Fed. Rep. 337. U. S. Circ. Ct., Colorado, June, 15, 1882. Miller v. Union Pacific Railway Co. Opinion by McCrary, C. J.

POST-OFFICE-REMEDY FOR REFUSAL TO DELIVER LETTER. Where the postmaster refuses to deliver registered letters and letters containing money orders, and other matter addressed through the mail,on which postage has been prepaid, the remedy of the aggrieved party is by mandamus or replevin, and not by injunction. U.S. Circ. Ct., Kentucky, July 18, 1882. Boardman v. Thompson. Opinion by Matthews, J.

WISCONSIN SUPREME COURT ABSTRACT. MAY 10, 1882.*

CONSTITUTIONAL LAW-LIMITATION OF MUNICIPAL INDEBTEDNESS. (1) The Conssitution of Wisconsin provides thus: "No county, etc., shall be allowed to become indebted in any manner, or for any purpose, to any amount, including existing indebtedness, in the aggregate exceeding 5 per centum on the value of the taxable property therein, to be ascertained," etc. Held, that where a county is already indebted in a sum exceeding five per cent. of the value of the taxable property therein, it cannot incur a further in* Appearing in 54 Vermont Reports.

debtedness for building a court-house or for any other purpose; and a tax levied to pay such further alleged indebtedness is void. See City of Springfield v. Edwards, 84 Ill. 626; Fuller v. City of Chicago, 89 id. 282; Grant v. City of Davenport, 36 Iowa, 396. See also Koppekus v. State Capitol Com's, 16 Cal. 253; State v. McAuley, 15 id. 455; State v. Medbury, 7 Ohio St. 522; State v. Mayor, 23 La. Ann. 358. (2) Where, in action to set aside tax sales and certificates for the illegality of a part of the taxes, the record discloses no means of determining what amount of the tax levied upon plaintiff was valid, the court will not require payment of any amount as a condition of relief. Hebard v. Ashland Co. Opinion by Orton, J.

FRAUDULENT CONVEYANCE — FRAUDULENT GRANTEE FOR VALUE HAS NO EQUITY AGAINST CREDITORS FOR PURCHASE PRICE.- A grantee of real or personal estate, when it is shown that the purchase was made with the intent to defraud or to hinder aud delay creditors, has no equity as against such creditors to be protected for the amount which he actually paid on such purchase. So the fraudulent grantee in possession of the property of the debtor cannot be protected for the money or other consideration he may have given for the transfer as against the creditors of the debtor; nor can he be protected in the possession of the proceeds of such property received by him on a sale thereof. The reason and justice of this rule are apparent when the effect of any different rule upon the rights of the creditors is considered. If the fraudulent grantee can be protected for the amount actually paid by him at the time of the fraudulent transfer, then this would happen: The fraudulent debtor could make a sale with intent to avoid the payment of his debts, take the money and leave the country, and the purchaser have knowledge that he intended to do so, and yet be protected for the money so paid and appropriated. A rule which would lead to such results cannot be tolerated by courts. The rule as above stated has been recognized and adopted by this as well as other courts. Gardinier v. Otis, 13 Wis. 460; Stein v. Hermann, 23 id. 132; Avery v. Johann, 27 id. 246; Union National Bank v. Warner, 12 Hun, 306; Briggs v. Merrill, 58 How. Pr. 389; Fullerton v. Viall, 42 id. 294; Goodhue v. Berrien, 2 Sandf. Ch. 630. Ferguson v. Hillman. Opinion by Taylor, J.

-

PRACTICE- -NEW TRIAL FOR EXCESSIVE DAMAGES. - In actions of torts as well as those upon contract, wher the damages allowed by the jury are clearly excessive, the trial court may either grant a new trial absolutely or permit plaintiff to remit the excess, and in case he does so, order the verdict to stand for the residue. But the damages allowed by the verdict should not be treated as excessive, unless they are such as to create the belief that the jury may have been misled by passion, prejudice or ignorance. In Potter v. Railway Co., 22 Wis. 619, the trial court refused to set aside the verdict, and this court was asked to allow the plaintiff to remit whatever should be deemed an excess of damages, but it declined to exercise any such power, and sent the cause back for a new trial with certain advisory remarks. The same course was followed in Goodno v. Oshkosh, 20 Wis. 306. See also Bass v. Railway, 39 di. 636; Page v. Sumpter, 11 N. W. Rep. 60; Cassin v. Delany, 38 N. Y. 178. But in the case at bar the deduction was allowed by the trial court. The right to allow such deduction in cases where the amount could be readily ascertained from the evidence with certainty, would not be questioned; but whether the power exists in actions of tort, where the amount which should be deducted cannot be ascertained with any degree of certainty, is a question upon which the authorities are by no means uniform. Nudd v. Wells, 11 Wis. 415, was an action against an

express company to recover damages for the nondelivery of a box of machinery, and the plaintiff obtained a verdict of $1,087, and on motion to set aside the verdict and for a new trial the same was granted, unless the plaintiff consented to reduce the verdict to $821.21, which he did, and judgment was entered thereon accordingly, and the defendant appealed to this court. In giving the opinion of the court Mr. Justice Paine said: "The practice of remitting where the illegal part is clearly distinguishable from the rest, and may be ascertained by the court without assuming the functions of the jury and substituting its judgment for theirs, is well settled. But it ought not to be carried so far as to allow the court, when a jury has obviously mistaken the law or the evidence, and rendered a verdict which ought not to stand, to substitute its own judment for theirs, and after determining upon the evidence what amount ought to be allowed, allow the plaintiff to remit the excess, and then refuse a new trial." And then, after conceding that there were two authorities (Collins v. Railway Co., 11 Barb. 492, and Clapp v. Railway, 19 id. 461), sustaining that view, and expressing some doubt as to whether there was any evidence that the value was the precise sum named by the court, he continued: "But without determining whether the court might properly have done this (determine the true value of the machine) consistently with the rule above laid down, we think it was mistaken in the rule of damages which it finally allowed." Thereupon the court reversed the cause upon other grounds and hence the question suggested was not determined. In Blunt v. Little, 3 Mason, 102, the plaintiff obtained a verdict of $2,000 in an action for malicious arrest, and on motion for a new trial on the ground that the damages were excessive, Mr. Justice Story, before whom the cause was tried, said: “After full reflection, I am of opinion that it is reasonable that the cause should be submitted to another jury unless the plaintiff is willing to remit $500 of his damages. If he does, the court ought not to interfere further." Page 107. A similar practice was followed in Diblin v. Murphy, 3 Sandf. 19; Collins v. Railway Co., 11 Barb. 492; Clapp v. Railway Co., 19 id. 461; Murray v. Railway Co., 47 id. 196; McIntyre v. Railway Co., 47 id. 515; Sears v. Condover, 3 Keyes, 113; Hayden v. S. M. Co., 54 N. Y. 221; Whitehead v. Kennedy, 69 id. 462; Doyle v. Dixon, 97 Mass. 208; Woodruff v. Richardson, 20 Conn. 238; Jewell v. Gage, 42 Me. 247; Belknap v. Railroad, 49 N. H.358; Town of Union v. Durkes, 38 N. J. L. 23; Yeager v. Weaver, 64 Penn. St. 425; Pendleton Street R. Co. v. Rahmann, 22 Ohio St. 446; Illinois C. R. Co. v. Edert, 74 Ill. 399; Lombard v. Railway Co,, 47 Iowa, 494; Collins v. Council Bluffs, 35 id. 432; Kinsey v. Wallace, 36 Cal. 462; Guerry v. Kerton, 2 Rich. 507; Young v. Englehard, 1 How. (Miss.) 19; Davidson v. Molyneux, 17 L. T. R. 289. These cases were mostly actions for tort. In some of them the reduction was allowed by the appellate court, but that would seem to be extending instead of limiting the rule. The reasoning in some of these cases would seem to be unreasonable. Corcoran v. Harran. Opinion by Cassoday, J.

RHODE ISLAND SUPREME COURT AB-
STRACT.

CONTEMPT – - REVOKING OFFER TO PURCHASE PROPERTY SOLD BY ORDER OF COURT.-C. holding as trustee for the benefit of creditors a large estate, was ordered by the court to sell and to dispose of the proceeds in a way described. Subsequently he received from W. an offer to bid at auction a given sum as an * To appear in 13 Rhode Island Reports.

upset price for the estate in bulk. This offer was favored by the creditors, and was submitted to the court by C. with the knowledge of W., whereupon the former order of sale was modified to meet the conditions of W.'s offer. The day before the auction sale W. annulled his offer,and the sale was thus frustrated. Held, that W. was guilty of a contempt of court. Blackstone (4 Com. 283) recognizes two classes of contempt; direct or those "which openly insult or resist the powers of the courts;" and consequential, or those "which without such gross insolence or direct opposition, plainly tend to create a universal disregard of their authority." It has been held that any thing done for the purpose of obstructing justice, or which will have that effect, is a contempt. Rex v. Clement, 4 B. & A. 218, 233. In Executors of Brasher v. Cortlandt, 2 Johns. Ch. 505. where a purchaser at committee's sale bid from friendship to another, who having taken an appeal in the proceedings, advised respondent that he need not complete the purchase, he was ordered to pay the purchase-money or an attachment would issue. Chancellor Kent remarked: "If no order of this kind could be made in this case, it would follow that not only the purchaser but the committee of the lunatic would be permitted to baffle the court and sport with its decree." In Gilmore v. Gilmore, 40 Me. 50, the defendant professed his readiness to pay certain notes, when he could do so with safety, claiming no abatement of the sum apparently due and a receiver was appointed to collect them. The defendant then refused to pay unless an allowance was made for an amount which he claimed had been previously paid, whereupon the court ordered an attachment, saying: "This refusal to pay his note to the receiver has the appearance of a disposition to palter with the authority of the court, if not to practice a fraud upon those who are interested in the proceeds of the property in his hands. Such a course can neither be approbated nor permitted." In Fischer v. Raab, 56 How. Pr. 218, where a party in open court agreed to pay the expense of a reference in a certain event and the event occurred; on refusal to pay he was held to be in contempt. So in Lansdown v. Elderton, 14 Ves. Jun. 512, a purchaser at a master's sale failed to pay in his money and was ordered to be committed to the Fleet, on the ground that a purchaser "could not be permitted to baffle the court and disobey an order, more than any other person." Contempt lies in the quality of the act done, not in the intention of the person doing it. In Wartman v. Wartman, Taney, 362, it is said: "As regards the question whether a contempt has or has not been committed, it does not depend on the intention of the party, but upon the act he has done." That persons not parties to a suit may be held for contempt is well established. An editor of a newspaper has been fined for contempt in publishing proceedings contrary to an order of the court. Rex v. Clement, 4 B. & A. 218. A member of the House of Commons who had carried off his infant daughter, a ward of the court, from the house of the ladies under whose care she had been placed by the guardians appointed by the court, and who, on being examined by the court admitted the fact and refused to state where his daughter was, was ordered to be committed to the Fleet, although not a party to the suit. Wellesley's case, 2 Russ. & M. 639. Where a railroad was in the hands of a receiver, the employees of another road, who had "struck," prevented employees of the receiver from working, and were adjudged to be in contempt. Secor v. Toledo, etc., R. Co., 7 Biss. 513; King v. Ohio, etc., R. Co., id. 529. See also upon the subject Hazard v. Durant, 11 R. I. 195; Watson v. Fuller, 9 How. Pr. 425; Sickels v. Bordens, 4 Blatchf. 14; Buffum's case, 13 N. H. 14; In re Hirst, 9 Phila. 216; State v. Lonsdale, 48 Wis. 348;

DEED OF RIGHT TO DRIFT-STUFF ON SEASHORE.By a deed of partition A. received the right to have to himself and his heirs "exclusively all the sea manure and drift stuff which lands on the west shore;" also to have the right of tipping the same and carting away at their pleasure by a road or way leading on the bank of said west shore clear of the gullies." Held, that this right did not embrace goods floated ashore from a wrecked vessel so as to entitle A. to the salvage as against the riparian owner. Held further, that the right was confined to such stuff as A. could collect and legally appropriate, not such as A. must hold for or deliver to a known owner. Watson v. Knowles. Opinion by Durfee, C. J.

[Decided April 20, 1882.]

REPLEVIN -INVALID BOND-RATIFICATION.-A., without authority from B., executed in B.'s name a replevin bond which was not such a bond as is required by the statutes of Rhode Island, which prescribe a bond executed by the plaintiff or "some one in his behalf." After service of the replevin writ B. under seal ratified the act of A. Held, that the ratification could not, without the defendant's consent, validate the service of the writ, as a valid bond is a condition precedent of valid service. Purple v. Purple, 5 Pick. 226; Garlin v. Strickland, 27 Me. 443; Brahn v. New Jersey Forge Co., 38 N. J. Law, 74; Pickard v. Perley, 45 N. H. 188. Smith v. Fisher. Opinion per Curiam. [Decided April 1, 1882.]

NORTH CAROLINA SUPREME COURT RE

PORTS.

FEBRUARY TERM, 1882.

BANKRUPTCY-NEW PROMISE TO PAY DEBT DISCHARGED.- A promise to pay a debt discharged in bankruptcy, made to an agent of the creditor, is a promise to the creditor himself, and competent evidence to remove the bar. Where the proof was that the debtor said "the debt is an honest one- I always intended to pay it"-refused to execute a note on the ground of false recitals therein, but said "it is an honest debt and I will pay it certain;" held, that the evidence should have been submitted to the jury, under proper instructions, to say wheter the debtor intended to promise to pay the debt. Parker v. Shuford, 76 N. C. 219; Faison v. Bowden, id. 425; Kirby v. Mills, 78 id. 124; Fraley v. Kelly, 79 id. 348; Isley v. Stewart, 4 Dev. & Bat. 160; Massey v. Belisle, 2 Ired. 170; Festerman v. Parker, 10 id. 474; Starnes v. Erwin, id. 226; Henson v. King, 3 Jones, 419; Riggs v. Roberts, 85 N. C. 151. See also Stewart v. Reckless, 4 Zabr. 427; Pratt v. Russell, 7 Pick. 492. Shaw v. Burney. Opinion by Smith, C. J.

CONTRACT- CONSIDERATION -WHAT NECESSARY TO DEFEAT. The law is settled in this State, that to defeat a sale or contract for the want of consideration, there must be an entire failure; and it is otherwise where there is only a partial failure, which can only be remedied by a distinct action, and now perhaps by a counterclaim. Washburn v. Picot, 3 Dev. 390; Hobbs v. Riddick, 5 Jones, 80. And what is meant by a failure of consideration is not simply that the article sold is worthless to the purchaser, but if it be of some value to the seller there is a consideration, by which the promise of the purchaser to pay the agreed price, however disproportionate, may be sustained. If it be of no value to either party, it of course cannot be the *Appearing in 86 North Carolina Reports.

basis of a sale. But if it is beneficial to the purchaser in any degree he ought to pay for it, and the law fixes his obligation at the agreed price; and if it is a loss to the seller he ought to be remunerated. Johuson v. Titus, 2 Hill, 606; Parley v. Batch, 23 Pick. 283; Hart v. Wright, 17 Wend. 209; Barnum v. Barnum, 8 Conn. 469; Brown v. Ray, 10 Ired. 72; Weatherly v. Miller, 2 Jones, 166; Findly v. Ray, id. 5 125. But some of the authorities go even further than these we have cited, and hold that where the purchaser gets that which he really intends to buy, although the thing bought proves to be of no value, there is not a failure of consideration; as where one bought railway scrip and it was subsequently repudiated by the company upon the ground that it was issued without their authority, upon proof offered that the scrip was the only known scrip of the company, and had been for several months the subject of sale in the market; held, the buyer had got what he really intended to buy, and could not rescind the contract on the ground of want of consideration. Benj. on Sales, 322; Lambeth v. Heath, 15 M. & W. 486. Johnston v. Smith. Opinion by Ashe, J.

LEASE-PROVISION FOR RENEWAL.- Where a lessor agrees with a lessee, that at the expiration of the lease then subsisting, "he shall have the refusal of the premises for another year," it was held, that the lessee had the election to rent, or not, the premises on the same terms and conditions, and on payment of the same rent, and that the lessor was bound to renew the same upon said terms, if the lessee so elected. While this provision for renewal is not itself a renewal so as to vest an estate, yet it gives an equity which may be set upon as a defense in a summary proceeding in ejectment. Tracy v. Albany Ex. Co., Seld. 473; Renoud v. Durham, 32 Conn. 512. McAdoo v. Callum. Opinion by Smith, C. J.

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COMPROMISE - WHEN SET ASIDE AND WHEN NOT. A compromise voluntarily made without any fraud or imposition will not be set aside, however disadvantageous it may be. But if a debtor fraudulently conceals his property, and by a false and fraudulent representation of his inability to pay, induces his creditor to compound his debt, the creditor will not be bound by the composition. Plaintiff recovered a judgment for $4,000; defendant transferred stock of which he was owner, the par value of which was $11,000 or $12,000, in trust for his wife, to put it beyond reach of execution on the judgment and left the State. On representations by defendant that he had nothing to pay with, the plaintiff, without knowledge of the fraudulent transfer by the defendant of his property, was induced to sign a satisfaction-piece on payment of $50, and the judgment was cancelled of record. Held, that the satisfaction-piece was procured by fraud, and that the cancellation of record should be vacated. See Steele v. White, 2 Paige, 478; Vine v. Mitchell, 1 Moo. & R. 337;

* Appearing in 15 Vroom's (44 N. J. Law) Reports.